[Senate Hearing 109-681]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 109-681

                  FULFILLING THE PROMISE? A REVIEW OF
                      VETERANS' PREFERENCE IN THE
                           FEDERAL GOVERNMENT

=======================================================================

                                HEARING

                               before the

                  OVERSIGHT OF GOVERNMENT MANAGEMENT,
                 THE FEDERAL WORKFORCE AND THE DISTRICT
                        OF COLUMBIA SUBCOMMITTEE

                                 of the

                              COMMITTEE ON
                         HOMELAND SECURITY AND
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE


                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 30, 2006

                               __________

       Printed for the use of the Committee on Homeland Security
                        and Governmental Affairs





                                 _____

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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                   SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska                  JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            CARL LEVIN, Michigan
NORM COLEMAN, Minnesota              DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma                 THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island      MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah              FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico         MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia

           Michael D. Bopp, Staff Director and Chief Counsel
   Joyce A. Rechtschaffen, Minority Staff Director and Chief Counsel
                  Trina Driessnack Tyrer, Chief Clerk


   OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE AND THE 
                   DISTRICT OF COLUMBIA SUBCOMMITTEE

                  GEORGE V. VOINOVICH, Ohio, Chairman
TED STEVENS, Alaska                  DANIEL K. AKAKA, Hawaii
NORM COLEMAN, Minnesota              CARL LEVIN, Michigan
TOM COBURN, Oklahoma                 THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island      MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah              FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico         MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia

                   Andrew Richardson, Staff Director
              Richard J. Kessler, Minority Staff Director
            Nanci E. Langley, Minority Deputy Staff Director
                      Emily Marthaler, Chief Clerk




















                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Voinovich............................................     1
    Senator Akaka................................................     3

                               WITNESSES
                        Thursday, March 30, 2006

Hon. Dan G. Blair, Deputy Director, Office of Personnel 
  Management.....................................................     5
Hon. Charles S. Ciccolella, Assistant Secretary for Veterans' 
  Employment and Training, U.S. Department of Labor..............     6
James McVay, Deputy Special Counsel, U.S. Office of Special 
  Counsel........................................................     8
Richard Weidman, Director of Government Relations, Vietnam 
  Veterans of America............................................    22
Joseph C. Sharpe, Jr., Deputy Director, National Economic 
  Commission, The American Legion................................    25
Brian E. Lawrence, Assistant National Legislative Director, 
  Disabled American Veterans.....................................    26

                     Alphabetical List of Witnesses

Blair, Hon. Dan G.:
    Testimony....................................................     5
    Prepared statement...........................................    33
Ciccolella, Hon. Charles S.:
    Testimony....................................................     6
    Prepared statement...........................................    44
Lawrence, Brian E.:
    Testimony....................................................    26
    Prepared statement...........................................    78
McVay, James:
    Testimony....................................................     8
    Prepared statement...........................................    49
Sharpe, Joseph C., Jr.:
    Testimony....................................................    25
    Prepared statement...........................................    71
Weidman, Richard:
    Testimony....................................................    22
    Prepared statement...........................................    60

                                APPENDIX

Questions and answers submitted for the Record from:
    Mr. Blair....................................................    80
    Mr. Ciccolella...............................................    88
    Mr. McVay....................................................    91
    Mr. Weidman..................................................    95
    Mr. Sharpe...................................................   100
    Mr. Lawrence.................................................   104


















 
FULFILLING THE PROMISE? A REVIEW OF VETERANS' PREFERENCE IN THE FEDERAL 
                               GOVERNMENT

                              ----------                              


                        THURSDAY, MARCH 30, 2006

                                 U.S. Senate,      
                Oversight of Government Management,        
                        the Federal Workforce and the      
                     District of Columbia Subcommittee,    
                    of the Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:37 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. George V. 
Voinovich, Chairman of the Subcommittee, presiding.
    Present: Senators Voinovich and Akaka.

             OPENING STATEMENT OF SENATOR VOINOVICH

    Senator Voinovich. The Subcommittee will please come to 
order. Thank you for coming. Today's hearing, ``Fulfilling the 
Promise? A Review of Veterans' Preference in the Federal 
Government'' continues this Subcommittee's commitment to 
oversight of the Federal workforce. The purpose of today's 
hearing is to evaluate one of the most important civil service 
protections, veterans' preference.
    I would first like to thank my good friend, Senator Akaka, 
who has served as my partner in many civil service reform 
initiatives. I would also like to thank him for requesting 
today's hearing. As a veteran himself and the ranking member of 
the Senate Committee on Veterans' Affairs, our Nation's 
commitment to veterans holds a very personal interest to him.
    Since its inception, this country has recognized the 
special sacrifice of veterans. To this end, our Nation has 
taken the necessary steps to provide for their health and well-
being due to service-related injuries. We have also established 
safeguards and mechanisms to ensure that our veterans are 
afforded professional, vocational, or technical opportunities 
upon completion of their military service.
    Near the conclusion of the Civil War, Congress passed the 
first veterans' preference legislation for qualified disabled 
veterans for a position in the Federal Government. Although not 
a veteran myself, I understand the importance of honoring 
veterans, and particularly in my case our Ohio veterans and 
their families. As Governor of Ohio, one of my first actions 
was to create the Governor's Office of Veterans' Affairs. This 
office was the first of its kind in Ohio to provide services 
for veterans seeking Federal benefits and overseeing State laws 
pertaining to veterans.
    I brought the office to the 30th floor, which is where the 
Governor's office is situated, and gave it a high profile so 
everybody knew that we meant business. The first man to serve 
as director of this office was my good friend, the late Dave 
Alstead, a Vietnam veteran, who did an absolutely fantastic job 
in that office.
    I also lobbied for legislation during my first term 
establishing a special task force during times when the 
National Guard and Reserves were activated. The Ohio Military 
Activation Task Force assisted the dependent families, 
employers and employees of Guard and Reserve members with needs 
that may arise in their absence, and that task force continues 
today.
    We didn't have to set up a special task force when we got 
involved in Afghanistan and Iraq because the group is ongoing. 
I strongly believe we must take care of those who serve when 
they return from duty. Furthermore, in Ohio, we facilitated 
private sector job fairs for veterans and declared several 
periods, Veteran Week periods.
    In other words, the government has to get the private 
sector to try and help our veterans. I also developed the 
Veterans' Bill of Rights, and a 1-800 number with the Ohio 
Bureau of Employment Services to assist veterans in finding 
employment.
    As Governor, Commander-in-Chief of the Ohio National Guard, 
I felt duty-bound to honor our veterans. I had the distinct 
privilege of dedicating the Congressional Medal Grove at Valley 
Forge, Pennsylvania. How many have been to the Congressional 
Medal Grove? It is an unbelievable way to honor our National 
Medal of Honor recipients.
    They couldn't get a governor to go to Valley Forge to 
dedicate it. They have a provision that says, ``If your 
governor won't come, we won't dedicate it.'' I will never 
forget that day, and Ray Allman was one of our Congressional 
Medal of Honor winners who is still alive and was over there. 
It was a very emotional experience I had that day.
    When I became Governor, I was also surprised to learn that 
the only veterans' memorial on the grounds of the State House 
were to commemorate veterans from the Civil War and one from 
the First World War. There was nothing to honor our veterans 
from the Second World War, Korea, Vietnam, or Desert Storm.
    So when we undertook the renovation of the State House, a 
site was reserved to build the Ohio Veterans' Plaza. We now 
have a very fine memorial to our veterans. It will be there for 
other veterans who served us.
    In 1992, Ohio established the Nation's first Veterans' Hall 
of Fame, which is run by the Governor's Office of Veterans' 
Affairs. Again, we wanted to honor veterans at that Hall of 
Fame, and those annual events are something that I will always 
remember.
    We, in Congress, continue to recognize the service, 
sacrifice, and dedication our veterans have made to our Nation. 
As a result, Congress continues to evaluate and improve upon 
the opportunities for veterans to continue their service by 
facilitating their entry into the Federal service.
    Congress most recently clarified veterans' preference laws 
in the 2006 Defense Authorization Act, which ensures preference 
for veterans which have served in operations in response to 
September 11 through the conclusion of the Operation Iraqi 
Freedom. As the number of our veterans grows, it is imperative 
for us, in Congress, to evaluate new laws and consider their 
implementation by the government to ensure veterans are 
afforded the opportunities promised.
    While it is impossible for us to adequately express our 
gratitude to the brave men and women who have served our Nation 
in the Armed Forces, and their families, the government must do 
all it can to care for these brave individuals. And I share 
their commitment.
    I am really anxious to hear the testimony of our witnesses. 
No one should refrain from being critical. One of the reasons 
why we are having this hearing today is to find out how are we 
doing. And what are we doing that we could improve upon?
    I would like to turn this over to Senator Akaka for his 
opening statement.

               OPENING STATEMENT OF SENATOR AKAKA

    Senator Akaka. Thank you very much, Mr. Chairman. It is a 
pleasure to work with you on the Subcommittee on Government 
Management, Federal Workforce, and the District of Columbia.
    I sincerely appreciate your willingness to hold today's 
hearing on veterans' preference. I know you share my commitment 
to helping our Nation's veterans. Through our discussions this 
afternoon, we will have the opportunity to review veterans' 
preference which, as you mentioned, has been in effect since 
the Civil War.
    I also wish to thank you for your continued leadership in 
making the government an employer of choice. I enjoy being your 
partner in this joint endeavor, and look forward to the days 
ahead as we work together on this Subcommittee.
    As a veteran and the ranking member of the Senate Committee 
on Veterans' Affairs, I understand the importance of ensuring 
that the Federal Government fulfills its promise to our 
veterans. I firmly believe that young men and women will serve 
in this Nation's all-volunteer military only if they see that 
the veterans who have come before them are treated with the 
respect that they have earned through selfless service.
    One area where this is especially true is veterans' 
preference in Federal employment. We know all too well the 
sacrifices our veterans made for their country. While we must 
do much more to keep our promise to provide health care to our 
veterans, the Federal Government also has an obligation to 
support returning members of the Armed Forces in finding 
employment and guaranteeing that their time in the military 
does not count against them.
    Although many modifications and enhancements have been made 
to veterans' preference, the basic premise is the same, 
ensuring that America's veterans are not disadvantaged because 
of military service. Veterans' preference recognizes the 
economic loss suffered by those who have served their country 
in uniform and acknowledges the larger obligation owed to 
disabled veterans.
    The good news is that the Federal Government is a leader in 
hiring veterans. According to the Office of Personnel 
Management, there were nearly 454,000 veterans employed by the 
Federal Government in fiscal year 2004, representing 25 percent 
of the Federal workforce. According to the most recent data on 
the civilian labor force, veterans comprise only 9.4 percent of 
the private sector work force.
    However, once you subtract the roughly 231,000 veterans 
hired by the Department of Defense from the total number of 
veterans in the government, it is clear that the Federal 
Government as a whole has room for improvement. To ensure that 
the government retains its role as a leader in hiring veterans, 
we must work to improve recruiting and placing veterans in 
professional positions, as only 4,200 of the 43,000 veterans 
hired in 2004 received such jobs. This number pales in 
comparison to the 24.8 percent of veterans hired for 
administrative positions, the 23.2 percent hired for clerical 
positions, and the 21.9 percent hired for blue collar 
positions.
    Currently, veterans are provided a preference in hiring and 
a protection in a reduction in force. However, I have heard 
from concerned veterans that, one, the system to ensure 
veterans' preference is not working as intended. Two, agencies 
are trying to avoid hiring veterans, and are using surrogate 
systems for RIFs. And, three, the new personnel regulations at 
the Department of Defense will adversely impact veterans' 
preference. For example, I have heard from employees at the 
U.S. Forest Service and a management association at the U.S. 
Postal Service that their agencies appear to use involuntary 
reassignments to circumvent applying veterans' preference in a 
RIF.
    I look forward to discussing some of these issues with our 
witnesses today and exploring ways to address these concerns. 
With over 1.2 million members of the Armed Services having been 
deployed to fight the wars in Iraq and Afghanistan, this 
hearing is timely.
    Again, I appreciate Chairman Voinovich calling today's 
hearing to review how well veterans' preference is working, 
both in theory and in practice. If problems need to be 
addressed, let's do it now before more of our troops come home. 
Our veterans deserve no less.
    In closing, Mr. Chairman, I want to thank our witnesses. I 
appreciate the work of our Federal partners, the Office of 
Personnel Management, the Department of Labor, and the Office 
of Special Counsel. Together, they provide the framework to put 
veterans' preference into practice. I am especially pleased 
that we are also joined by representatives of the veterans' 
service organizations, who have a long and proud tradition of 
working on behalf of those who put themselves into harm's way 
to protect us all.
    I thank you again, Mr. Chairman, for this hearing, and look 
forward to hearing the testimony of the witnesses.
    Senator Voinovich. Thank you, Senator Akaka.
    We have a tradition here of swearing in the witnesses.
    [Witnesses sworn.]
    Senator Voinovich. Time is always at a premium in the 
Senate. One of the things Senator Akaka and I don't know is 
when they call votes to the floor, so we like to move things 
along so everybody has a chance to at least be heard. I would 
ask the witnesses to limit your oral statements to 5 minutes, 
and I am going to be really tough today about it, 5 minutes, 
and you know that your complete written testimony will be put 
into the record.
    Our first panel, we have Hon. Dan Blair, the Deputy 
Director of the Office of Personnel Management; the Hon. 
Charles Ciccolella, the Assistant Secretary of Labor for 
Veterans' Employment and Training of the Department of Labor; 
and James McVay, Deputy Special Counsel, Office of the Special 
Counsel. We are very happy that you gentlemen are here today.
    Mr. Blair, will you proceed?

 TESTIMONY OF HON. DAN G. BLAIR,\1\ DEPUTY DIRECTOR, OFFICE OF 
                      PERSONNEL MANAGEMENT

    Mr. Blair. I would be happy to.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Blair appears in the Appendix on 
page 33.
---------------------------------------------------------------------------
    Our mission at the Office of Personnel Management (OPM) is 
to ensure that the Federal Government has an effective civilian 
workforce. To accomplish this, we are dedicated to assuring 
compliance with Merit System principles, including veterans' 
preference laws and regulations. This Administration and OPM 
are committed to ensuring veterans receive all rights and 
benefits to which they are entitled under Federal employment 
laws.
    The Federal Government serves as the Nation's largest 
employer of veterans. According to our recent statistics, the 
government employs more than 456,000 veterans out of our work 
force of more than 1.8 million. Internally at OPM, we have one 
of the highest veterans' employment representations among 
independent agencies.
    While the numbers appear good, we have worked hard over the 
last 5 years to invigorate compliance with veterans' preference 
laws and regulations. To do this, we conduct audits of 
agencies' practices, as well as auditing agencies' human 
resources authorizations. Enforcement and compliance are key 
aspects of our program. We also have focused on building strong 
relationships with the veterans' service organizations (VSOs). 
To this end, I meet on a quarterly basis with the VSOs to 
address important veterans' issues and to provide an 
opportunity for the VSOs to share their concerns.
    We also are proud of our efforts directed at the agencies 
in support of veterans. For example, we worked closely with the 
Department of Defense (DOD) to preserve veterans' preference 
rights in workforce shaping and reductions in force in the new 
National Security Personnel System (NSPS). Further, we 
coordinated with the Department of Veterans' Affairs to reduce 
the paperwork burden placed on veterans in determining 
eligibility for employment preferences. Critical to the 
enforcement and compliance partnership is our partnership with 
the Department of Labor to resolve veterans' preference 
complaints and veterans' reemployment issues.
    Federal agencies today have seen an increasing number of 
their employees continuing to serve in the military through 
their Reserve service. In an effort to encourage agencies to 
assist these employees when activated, OPM initiated a program 
in which we asked agencies to pay both the employee and 
government shares of the Federal Employee Health Benefits 
premium during this period of activation. I am pleased to 
report that all 114 Federal agencies and departments have 
heeded this call.
    My written statement goes into great detail about OPM's 
specific actions in support of veterans. For example, our 
outreach efforts at the military's Transition Assistance 
Program Centers and our staffing of an office at the Walter 
Reed Army Medical Center to serve as a point of contact to 
provide employment information and counseling to veterans. We 
also have worked to make our USAJOBS web site more veteran-
friendly, by providing prominent links to veterans' employment 
information and web resources at agencies and elsewhere.
    These are just a few of the efforts that are covered in 
detail in my testimony. We are very proud of the work that we 
have done in this area, and will continue to make our efforts 
even greater throughout our government, in order to make the 
Federal Government the Nation's leader in veterans' employment. 
Thank you for this opportunity to testify. I will be happy to 
answer any questions.
    Senator Voinovich. Thanks, Mr. Blair. Mr. Ciccolella.

TESTIMONY OF HON. CHARLES S. CICCOLELLA,\1\ ASSISTANT SECRETARY 
FOR VETERANS' EMPLOYMENT AND TRAINING, U.S. DEPARTMENT OF LABOR

    Mr. Ciccolella. Thank you, Mr. Chairman. And let me say 
before I begin that I appreciated your opening comments. I 
believe the Senate has no finer advocates for veterans than 
Senator Akaka and yourself.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Ciccolella appears in the 
Appendix on page 44.
---------------------------------------------------------------------------
    Having been to Ohio a number of times, I can tell you that 
the traditions that you have started have carried on. In fact, 
from my recent visit, you might be interested to know that your 
workforce system actually runs a transition program, in 
addition to the transition program that we run for returning 
veterans. So it is a very good program.
    Thank you for the opportunity to appear, sir. I want to 
say, first of all, that we are absolutely committed to 
veterans' preference in the Federal Government. We believe the 
government does have a good record on veterans' preference and, 
as Senator Akaka mentioned, one in four employees, about 25 
percent of our Federal Government are veterans.
    It is the job of our organization, the Veterans' Employment 
and Training Service, to work collaboratively with OPM and the 
Office of Special Counsel and all of the Federal agencies, and 
we are champions of veterans' preference. We are also committed 
to ensuring that veterans receive all their rights and benefits 
to which they are entitled under the Federal employment laws.
    At Veterans' Training and Employment Service (VETS), which 
is our organization, we regularly communicate that to all 
Federal agencies in our outreach efforts, and in our primary 
responsibility for investigating and attempting to resolve 
veterans' preference complaints against the Federal Government 
that are filed under the Veterans' Employment Opportunity Act.
    The VEOA or Veterans' Employment Opportunity Act provides 
that a veteran or any preference-eligible person who believes 
that their rights have been violated under law or regulation 
may file a written complaint to us. We then investigate that 
complaint. I can assure you we have very highly trained 
investigators who do that, and the investigations are through.
    I have discussed the investigative process in my testimony, 
and so what I would like to do is just talk a little bit about 
veterans' preference trends. I think that is where the 
Subcommittee wants to go.
    There are many complaints that are filed with our 
Department that are determined to have no merit. There is 
actually good news to that, and there is also bad news. The 
good news is that we think the Federal agencies, from our 
outreach to these Federal agencies, are actually observing and 
applying veterans' preference. But there is also some bad news, 
and the bad news is that there is still some confusion about 
who is eligible for veterans' preference and the details about 
veterans' preference. That is particularly true of our recently 
separated veterans.
    One reason for that is because veterans don't understand, 
in many cases, that veterans' preference doesn't apply to the 
in-house promotions, the merit promotions. It applies primarily 
to the open competitive promotions. The other thing is that 
sometimes agencies don't respond to veterans in a timely manner 
with regard to whether they were or were not selected, and so 
we get complaints in that regard. Then sometimes a veteran is 
not qualified for the position, and when that is the case, then 
there is not much that we can do.
    What we are trying to do in working with OPM, because they 
have a major effort in this regard, is to improve the Federal 
agencies' knowledge of veterans' preference and, just as 
importantly, the use of special hiring authorities for bringing 
veterans in noncompetitively. And we think we are making big 
progress in this area.
    We have improved our outreach to veterans themselves with 
regard to the veterans' preference through the military 
transition points at the TAP employment workshops. We have very 
good on-line resources, and veterans preferences is also 
covered in the Federal application process.
    Thus, we are not only visiting the transition points and 
talking directly to our separating service members, but both 
OPM and DOL also have electronic tools or advisors that 
actually coach an individual through those programs so they 
know whether they have a veterans' preference complaint or not.
    In many agencies, especially at DOL and OPM, the secretary 
or director of the agency has encouraged the use of special 
hiring authorities. That has resulted, I believe, in 
significant increases in the number of veterans, and 
particularly disabled veterans and special disabled veterans, 
in the Federal Government.
    I would conclude by saying that I cannot stress enough how 
important our collaboration is with OPM, the Office of Special 
Counsel, and with the Federal agencies. It is the only way that 
things get done in the government. But, more importantly, I 
think all agencies, and particularly DOL, OPM, and I know the 
Special Counsel as well, are dedicated to ensuring that all 
Federal agencies do apply veterans' preference and they do make 
use of the special hiring authorities.
    That concludes my statement.
    Senator Voinovich. Thank you very much. Mr. McVay.

   TESTIMONY OF JAMES McVAY,\1\ DEPUTY SPECIAL COUNSEL, U.S. 
                   OFFICE OF SPECIAL COUNSEL

    Mr. McVay. Thank you, Mr. Chairman, for the opportunity to 
discuss how the Office of Special Counsel, OSC, promotes 
veterans' preference under Titles 5 and 38 of the United States 
Code. The Special Counsel extends his respect and gratitude to 
this Subcommittee for providing OSC with such an incredible 
responsibility.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. McVay appears in the Appendix on 
page 49.
---------------------------------------------------------------------------
    At OSC we honor the commitment and sacrifice of these noble 
Americans. One cannot spend 5 minutes at Walter Reed or 
Bethesda Naval Hospital without an overwhelming sense of 
gratitude, awe, and an understanding of our clear commitment to 
these American warriors.
    It is my goal to leave you today with an understanding of 
our commitment to these laws and the people they are designed 
to affect. We, at OSC, perform our mission by enforcing the 
Uniformed Services Employment and Reemployment Rights Act, 
USERRA, to ensure that they are not discriminated against 
because of their status as service members. We also protect our 
veterans under Title 5, the Civil Service Reform Act, relating 
to veterans' preference laws during the job application 
process. Allow me to explain how we have improved our 
enforcement of these important laws.
    With the passage of USERRA in October of 1994, Congress 
expanded OSC's role as protector of the Federal merit system 
and the Federal workforce. In cases where we are satisfied that 
the service member is entitled to relief, we may exercise our 
prosecutorial authority and represent the claimant before the 
Merit System Protection Board.
    When the Special Counsel took office, he made it a high 
priority to champion service members' rights. We were startled 
to learn that not a single USERRA case had ever been filed for 
corrective action before the Merit System Protection Board by 
OSC. Several of these cases had been in OSC for years. Within a 
few short months we had filed three cases before the Merit 
System Protection Board and obtained full corrective action for 
the aggrieved service members.
    Let me tell you about one. The preference in this case, the 
claimant, a full time staff nurse serving under a temporary 
appointment, alleged that her agency had violated USERRA by 
terminating her employment because she was excessively absent 
from the workplace due to her military obligations. The agency 
argued that term employees were not covered by USERRA. OSC 
filed an action before the MSPB and successfully obtained full 
corrective action for the claimant, namely, back pay, and 
expunging her record of any derogatory comment in her official 
personnel file. The agency also agreed to USERRA training for 
their managers.
    As you know, in late 2004 Congress further expanded OSC's 
role in enforcing USERRA. Pursuant to a demonstration project 
established under the Veterans Benefits Improvement Act of 
2004, OSC now has the exclusive authority to investigate 
Federal sector USERRA claims brought by persons whose social 
security number ends in an odd-numbered digit.
    Given these additional investigate responsibilities, OSC 
has established a USERRA unit as part of the organization of 
our agency. The USERRA unit is the investigative and 
prosecutorial unit for all matters pertaining to USERRA and 
veteran-related employment issues.
    We have also stepped up our technical assistance and 
outreach through modification of our web site. We have created 
a new electronic filing form and a new web-based help line for 
answering USERRA-related questions. We have also conducted 
educational outreach to several agencies and Federal employment 
seminars. The Federal Counsel's goal is to improve the 
awareness of Federal managers of these important laws.
    Here is just one of the examples of the 26 cases where our 
USERRA unit has obtained full corrective action. In this case 
the claimant was a member of the U.s. Air Force Reserve. She 
applied for two jobs with an agency. During her job interview, 
the selecting official noted that she was a member of the Air 
Force Reserve and asked her if she could be activated. She was 
honest. The claimant was not selected for either job. However, 
she did accept another job outside of that agency.
    Our investigation indicated the claimant would likely have 
been selected for the jobs, and the selecting official's 
comments and question suggested that the claimant's Reservist 
duties were the reason for her non-selection. The agency paid a 
lump sum settlement amount reflecting her loss of pay from the 
time the claimant would have been selected until the time the 
claimant began her current employment.
    As I commented earlier, OSC also provides relief under 
Title 5 of the United States Code to veterans under our 
authority granted in the Civil Service Reform Act, again noted 
as prohibited personnel practices. Section 2302(b)(11) forbids 
managers from taking, or failing to take, a personnel action if 
it would violate a veterans' preference law. However, OSC's 
role with respect to these allegations is limited to seeking 
disciplinary action against offending managers in appropriate 
cases. By statute, the Office of Special Counsel has no 
authority to help service members obtain corrective action.
    In closing, I want to thank the Subcommittee for allowing 
me to testify today. I truly believe the issues we are focusing 
on today cut to the core of our values as a Nation. According 
to Congress in enacting USERRA, Federal employers should be 
model employers in this regard. OSC strives to hold agencies to 
that high standard. Thank you.
    Senator Voinovich. Thank you, Mr. McVay.
    We will begin the questioning with 5-minute rounds.
    I think Senator Akaka mentioned this new National Security 
Personnel System has raised concerns that it would be used to 
avoid veterans' preference. One of the things that I was 
concerned about when we went from the rule of three to the 
categorical hiring was that it would be used to circumvent 
veterans' preference. Mr. Blair, how many agencies are using 
it? I know the last time I looked, it wasn't very many.
    Mr. Blair. I can not tell you how many agencies are but I 
do know that is in our strategic plan. We are going to get all 
agencies up and running on category ratings.
    Senator Voinovich. At the time there was some concern that 
somehow we were going to diminish the effort to uphold 
veterans' preference. To my knowledge, we haven't had a 
complaint on that, but maybe we will in the testimony later 
this morning.
    Mr. Blair. With category rating and ranking, it is a 
simplified form, as opposed to the rule of three. And, under 
category rating, ratings go to the highest division in their 
respective category. For instance, if you have categories of 
minimally qualified, qualified, and then best qualified, 
veterans would float to the top of each of those respective 
categories, depending on how their qualifications are 
determined. If you are a disabled veteran, you would float to 
the very top of the highest quality category. In other words, 
you float to the top of that best quality category.
    The preliminary data that we have seen or evidence that we 
have seen is that veterans fare better under category rating 
and ranking than they do under the rule of three. Veterans 
service organizations expressed some trepidation at first about 
moving to this area. They voiced that quite clearly to us and 
we heard those concerns. So we are watching to make sure that 
it is not being used as a subterfuge to get around veterans' 
preference. We believe at this point, that it is probably 
better for veterans than under the old rule of three.
    Senator Voinovich. I would like to get an update on the 
status of implementation of categorial hiring in the 
government. I think the law has been in effect for a couple of 
years.
    Mr. Blair. It has been.
    Senator Voinovich. I know it was very controversial and 
they said we would never get it done, and we did.
    Mr. Blair. Yes we did.
    Senator Voinovich. I think that has helped a great deal.
    Mr. Blair. It has. I would like to say that at our recent 
workforce conference we had one session devoted specifically to 
category rating and ranking. This session was held to ensure 
that agencies know how to use it and what not to do when using 
it. We also emphasized the application of veterans' preference 
during that breakout session. So the information is out there, 
and we will be holding agencies' feet to the fire to make sure 
that they are using that flexibility correctly.
    Senator Voinovich. One of the things that is always of 
concern to me, is how frequent is the contact with veterans' 
organizations? In other words, there are benefits that accrue 
to veterans in the Federal Government, all kinds of them. But 
how often do you make sure that you get that information to the 
veterans' organizations?
    For example, I constantly hear web site, web site, web 
site. I don't know how many veterans have computers. How much 
communication is there throughout the country? Do you have a 
regular, formalized program to make sure that veterans, in all 
three of your cases, are familiar with what is available in 
terms of jobs and so on, so that they can take advantage of the 
system?
    Mr. Blair. At OPM we have quite regular contact on multiple 
levels. For instance, I chair our veterans' service 
organization quarterly meetings. We have between 15 and 20 of 
the VSOs come in. We have an established agenda that we talk 
about, that is worked out beforehand, and go through that. For 
instance, we briefed the VSOs on the new personnel systems at 
the Department of Homeland Security and the Department of 
Defense. Our next meeting will be in April. We have not set 
that date yet, but it is done on a quarterly basis.
    Although that is at a higher level, that is my contact with 
the VSO representatives. We also have a dedicated staff member 
at OPM who serves as a liaison with the veterans' service 
community as well. He is in constant contact, on a daily basis, 
with the VSOs to act as a pulse-taker, to ensure that we have 
an open line of communications.
    If we have briefings on matters of mutual concern, we will 
call them in for situations like that. We also have gone beyond 
the Washington, DC area. When we did our job fairs, we placed 
special emphasis on veterans' hiring. We even had a veterans' 
hiring symposium a couple of years ago, in which we brought in 
the agencies to make sure that they understood how to use 
category rating and ranking, and to understand the meaning 
behind veterans' preference and how important it is. I remember 
a couple of years ago, we had one of our first meetings at 
Walter Reed Medical Center. The purpose behind that was to 
emphasize the commitment that the Federal Government has to 
returning veterans.
    So, it is a multi-layer process that we have. I am quite 
proud of the progress we have made over the last 5 years. I 
know that when I went into OPM, I was struck by the level of 
suspicion and ill-will that was expressed towards OPM, because 
there was a great level of distrust. I think the VSOs can speak 
better to that, but I hope that we have done a good job at 
displacing that. Are we always going to agree on every issue? 
That's why we have these meetings--to express those comments 
and try to work through those disagreements.
    Senator Voinovich. My time is up. Senator Akaka, I 
understand that we have a vote going on. Would it be OK if I 
went to vote? And you just take as much time with the 
questioning as you want, and then you can go vote. Is that all 
right for you?
    Senator Akaka. Yes. Thank you very much, Mr. Chairman.
    Mr. McVay, current law provides that OSC may take action 
against an agency only when the agency knowingly--and I stress 
knowingly--violates preference laws. Acording to the VSOs the 
term knowingly undermines the effectiveness of this law. My 
question is, how many disciplinary action cases has OSC brought 
against agencies for violating veterans' preference? What was 
the final outcome of these cases?
    Mr. McVay. Thank you, Senator, for that question. I will 
tell you I can only answer in the last year and a half since I 
have been there. I didn't know I would be asked this, but I can 
certainly get some of that information to you.
    I will tell you that in the last year and a half there has 
been one case filed for disciplinary action for violation of a 
veterans' preference. And before that, frankly, it had been 
quite some time. But since the current Special Counsel took 
office, there has been one. Before that, it has been quite some 
time. That case was filed and actually settled before it went 
to trial with that manager, and that manager took discipline 
and actually took quite a bit of time off as part of the 
discipline.
    Senator Akaka. So that was one case that was filed?
    Mr. McVay. That is correct.
    Senator Akaka. How has the word ``knowingly'' impacted 
enforcement of veterans' preference?
    Mr. McVay. Keep in mind, Senator, that we only have 
authority to discipline managers, which can be anything from 
suspension all the way up to debarment from Federal service. 
And when we are talking about debarring somebody with Title 75 
protections, they have a lot of due process rights. And so with 
that understanding, I believe the statute was written to make 
sure that they could only be disciplined when there was a 
knowing violation, an intentional violation, if you will, of 
veterans' preference laws.
    Now, if we had authority to get corrective action for 
complainants, there would probably be a different standard, 
just like in whistle-blower reprisal cases, where the standard 
is somewhat lower. When we are simply getting corrective 
action, such as back pay, expungement of the official personnel 
file for disciplinary actions taken in reprisal, for example, 
it would probably be a lower standard.
    But, considering the fact that we are talking about 
debarment, there is probably a necessity for us to show that 
the manager really had an ill mind, if you will, mens rea 
almost in the criminal sense, when they made the decision to 
not use the veterans' preference law. Otherwise, frankly, would 
you be disciplining managers for making mistakes.
    Senator Akaka. Thank you.
    Director Blair, you mentioned that OPM has quarterly 
meetings with veterans' service organizations to discuss issues 
important to veterans. What are three recurring issues that the 
VSOs bring up at these meetings? And what steps has OPM taken 
to address these issues?
    Mr. Blair. I have our January agenda with me, and it was an 
update on the NSPS. As you know, the regulations at that point 
were about to be finalized. So, we wanted to give the VSOs an 
update.
    Another issue is compliance issues, to make sure that the 
VSOs understand our role in the compliance process where 
complaints--if there are complaints, who handles such 
complaints, if it is us or if it is the Department of Labor, 
what our roles are in auditing agencies, when we are looking at 
what we call the Delegated Examining Unit of the authorities--
that is the authority for an office within an agency to hire 
without having to go through OPM--or if it was a full-blown 
audit of an agency's resources operations. We talked about our 
recent report to Congress that we issued on the employment of 
veterans.
    I think this is fairly representative of the issues that we 
have discussed with VSOs over the course of the last 3 years 
that I have been doing this. These are issues that come to the 
forefront, whether they are core issues or hiring issues. I 
think we have had several sessions on category rating, exactly 
what it is and what it is not.
    But the bottom line is this is a great opportunity for both 
sides. For OPM to bring in the program folks who are charged 
with directing these programs, to let the VSOs know who the 
faces are behind these names, and also for them to have one-on-
one interaction with VSOs. These can be quite lively meetings, 
as they should be. I think over the course of the last few 
years we have elicited very good will between the 
organizations, knowing that we can not agree on everything but 
knowing that there will not be surprises, and they will always 
know who to call in case there are situations which demand 
immediate attention.
    Senator Akaka. You mentioned the VSOs and we have here 
three VSOs on the next panel.
    Mr. Blair. Yes.
    Senator Akaka. What are the issues raised regularly by VSOs 
as common problems?
    Mr. Blair. An update on the NSPS was done in January. We 
have done updates on the Department of Homeland Security. We 
did a presentation on the draft ``Working For America Act.''
    What are we doing in terms of our audit? A few years ago we 
did a complete audit report. We did a briefing on that as well. 
We did an overview on our 2004 report to Congress on our hiring 
of veterans. Those are just examples of things that have come 
up during the VSO meetings.
    Senator Akaka. Mr. McVay, I reviewed the OPM report on the 
employment of veterans in the Federal workforce but did not see 
the OSC listed. Can you tell me how many veterans currently 
work at OSC?
    Mr. McVay. No, I can not. I will tell you that recent 
hirings have included multiple veterans, and frankly I have 
been on several of the boards where there have been a lot of 
veterans hired in the Office of Special Counsel. But if you 
want me to, I will be glad to get that information to you.\1\
---------------------------------------------------------------------------
    \1\ The information appears in a letter dated November 20, 2006, on 
page 105.
---------------------------------------------------------------------------
    Senator Akaka. Will you please have it for the record?
    Mr. Ciccolella, you testified that VETS entered into an MOU 
with OSC in the year 2000, requiring that any meritorious 
veterans' preference cases be automatically referred to VETS 
for review as a potential prohibited personnel practice. Mr. 
McVay states that VETS refers cases to OSC involving egregious 
violations of veterans' preference rights. As a point of 
clarification, are all violations sent to OSC, or only the 
egregious ones? And if the latter, what criteria does VETS use 
to determine if the case is serious enough to warrant 
disciplinary action?
    Mr. Ciccolella. Senator Akaka, if during the process of our 
investigation, and in looking at the hiring process, which is 
what our responsibility is, to determine whether a veterans' 
preference has been applied, if we make a merit determination, 
we obviously try to resolve the case right there. Sometimes we 
can, sometimes we can not. If we can not resolve the issue, we 
will then take the other route of working with the client, the 
complainant, to buck it up to the Merit System Protection Board 
and beyond that.
    It doesn't matter what the violation of veterans' 
preference is. If we make a merit determination, whether the 
agency complies with our request for them to resolve it in 
favor of the veteran or not, we inform the Special Counsel's 
office and provide the case to them to review. The Special 
Counsel's office reviews it for prohibited personnel practices, 
i.e., any violation of the 12 very clearly codified prohibited 
practices. At that point we continue on, obviously, with the 
settlement of the case if we can.
    With regard to the kinds of egregious violations, we don't 
find a significant number of egregious, willful violations. But 
it is very clear when an agency has violated veterans' 
preferences.
    Senator Akaka. Thank you for that.
    Mr. Blair, employees at the Forest Service and the Postal 
Service have contacted me about involuntary reassignments that 
appear to be directed at veterans as a way of circumventing the 
prohibition on designer reduction in force (RIFs). I raised 
this issue with OPM Director Springer, who advised that this 
practice does not violate veterans' preference laws. However, I 
believe that even if it does not violate the law technically, 
it still violates the spirit of the law.
    Have you heard of this happening at other agencies? And 
what can be done to ensure that this process does not turn into 
a designer RIF?
    Mr. Blair. I do remember seeing the letter that you sent to 
Director Springer and the response that she sent back to you. 
At this time I am not aware of any practices like that at other 
agencies, and I would say that any effort to target veterans as 
a subterfuge to veterans' preference, if it is intentional, 
would likely be a prohibited personnel practice. However, if 
these are done as an effort to mitigate the effects of a 
reduction in force, I think that you need to be careful to make 
sure that the efforts you are doing do not exacerbate the 
impact of a reduction in force.
    While we have not seen it at other agencies, you mentioned 
the U.S. Postal Service and the Forest Service. I am not aware 
of any other instances where that has occurred. I also would 
say that you need to look at the totality of the circumstances 
in which the situation occurs and make sure that if any actions 
are taken, that you are not doing anything to give greater 
impact to the disruptive effect that a reduction in force has.
    Senator Akaka. I would tell you that I would appreciate a 
meeting of the chief human capital officers on this issue of 
veterans' preference, and look forward to that.
    Mr. Blair, I have also heard from veterans that agencies 
will often cancel vacancy announcements once it is determined 
that a veteran will get the position, and then reopen the 
announcement after the job description and requirements have 
been tailored to a particular person who is not a veteran.
    To the best of your knowledge, how many times has an agency 
returned a certificate unfilled? And how many of those were 
withdrawn for a valid business reason?
    Mr. Blair. We look at those things when we do our audits of 
agencies, and particularly, when we do what we call our 
Delegated Examining Unit (DEU) audits. That is one piece of 
evidence that we look for if we are looking for violations of 
veterans' preference.
    If we can see a pattern developing where an agency or an 
office in an agency is returning certificates unused because a 
veteran topped the certificate, or any other evidence 
indicating an intent to violate veterans' preference, that is 
something that we would turn over to the Special Counsel's 
office, as well as looking at withdrawing their DEU authority 
or other corrective actions. I can not tell you for certain how 
many agencies have done that, but those are things that we do 
look at. We do about 120 to 130 Delegated Examining Unit audits 
a year. So, those are things that we look for and would pick up 
on as evidence of violations of veterans' preference.
    Senator Akaka. Mr. Blair, last year the Merit System 
Protection Board ruled that the hiring of an individual under 
the Outstanding Scholar Program violated the veterans' 
preference rights of qualified veterans. I understand that OPM 
has asked the MSPB to reconsider that decision. Can you tell me 
why OPM is asking MSPB to reconsider the case? And how many 
individuals are hired under the Outstanding Scholar Program 
each year?
    Mr. Blair. In Fiscal Year 2004 there were approximately 
1,000 appointments under the outstanding scholar authority, as 
opposed to 43,000 veterans that were hired in Federal service. 
So overwhelmingly, for every one outstanding scholar 
appointment there are 43 veterans hired. I think that gives you 
a perspective in which you can evaluate this.
    As far as OPM's intervention with the Merit System 
Protection Board and our request for reconsideration, I can 
tell you that Outstanding Scholar is the product of a consent 
decree that is approximately 25 years old. I am kind of limited 
as to what I can say about this because it is the subject of 
current litigation--but we have always used Outstanding Scholar 
as a supplement to the hiring process, and it should not 
supplant veterans' preference. We see the two as coexisting 
within the same framework, although there are some natural 
tensions between the two.
    Senator Akaka. Mr. Ciccolella, can you walk us through the 
process of reviewing a veteran's claim that an agency has 
violated veterans' preference laws? For example, do you always 
talk to the veteran, review the veteran's performance files, 
and review the personnel file of the individuals who were hired 
instead of the veteran?
    Mr. Ciccolella. Certainly, Senator Akaka.
    First of all, VETS does not make a determination of the job 
qualifications of the veteran. That is not within our 
jurisdiction. With regard to the process, the complaints can 
come to us in a number of ways. They can come on our toll-free 
help line. They can come through the veteran employment 
representatives, the DVOP or LVER, for example, in Hawaii. An 
individual can also file a veterans' preference complaint 
electronically. They can come through our State directors.
    We do talk personally with the veteran at that point in 
time because you have to verify the individual's eligibility. 
Have they filed a complaint within 60 days? If not, how do we 
sort that out? And you can get a little bit of information with 
regard to whether the veteran may have veterans' preference. 
Some do and some don't.
    Then we immediately start gathering information, the 
selection certificate, for example. It doesn't take a lot of 
time. If there is a denial letter, or the information from the 
job announcement, or how the agency has informed the 
individual, we will get all of that information.
    Then we will formally notify the hiring authority, and we 
will tell them what our authority is. We may visit with them. 
We may ask them who was selected, why that individual was 
selected. Did they bypass veterans' preference? Was veterans' 
preference applied? Did they use categorical rating criteria? 
Or did they use the rule of three? Did they pass over a 
preference-eligible? Our investigators are pretty good at 
determining that.
    It becomes very clear when you're looking at the process 
whether or not there is an anomaly or a problem. If we find 
merit, then we will immediately try to resolve the situation 
with the employer, the agency, and the veteran. Sometimes we 
can, sometimes we can not. If we can not, we will then help the 
veteran refer their case to the Merit System Protection Board. 
If it does have merit, and we can work it out, then we will 
seek whatever remedy there is, including any back wages or 
placement.
    Senator Akaka. Thank you very much, Mr. Ciccolella. I have 
to run and vote now, but I will return.
    Mr. Ciccolella. I apologize. It's sort of a long process.
    Senator Voinovich. One of the questions that I am going to 
ask the second panel is, how would they characterize their 
organization's relationship with Federal agencies, the Office 
of Personnel Management, Department of Labor, and the Office of 
Special Counsel? I got into that a bit before, but I would like 
all of you to clarify just exactly how do you think they are 
going to answer that question?
    Mr. Blair. I would hope they would characterize their 
relationship with OPM as one of being a straight shooter. We 
are not always on agreement on things. However, they will get 
accurate and timely information from us. I think that is the 
best that you can ask from an agency like ours--that we 
understand the importance of that constituency.
    We have worked hard to build trust that was not there 
before, and I am pleased with the relationship that I, 
individually, have with a number of the representatives of the 
VSOs. So, I think that we have done a good job. We can always 
do a better job, but I think the most important thing is to 
keep the lines of communication open and make sure that 
communication is fair, accurate, and timely.
    Senator Voinovich. Mr. Ciccolella.
    Mr. Ciccolella. We have a pretty good relationship with the 
veterans' organizations. We try to get the VSOs together.
    Senator Voinovich. What does ``pretty good'' mean?
    Mr. Ciccolella. I would say they would rate 8 or 9. We have 
a very open line of communication. We have regular 
communications with them. We try to meet monthly or every 2 
months. They get part of the agenda. We get part of the agenda. 
We not only meet with them, but we also try to make sure that 
we address their legislative conferences, their service 
officers conferences, and we try to get the Secretary or a very 
high level official out to their national conferences.
    So we are in regular dialogue with them. But, frankly, Mr. 
Chairman, it would be very difficult to do my job if we didn't 
have an open dialogue with the veterans' service organizations. 
They are enormously helpful to us.
    We have a program called REALifelines, which seeks to 
employ the most seriously wounded an injured service members. 
Veterans' service organizations are very helpful in that 
regard.
    They are extraordinarily helpful because they have good 
outreach to homeless veterans. And the veterans' service 
organizations actually have homeless veteran task forces. They 
are very well organized. So they complement our Homeless 
Veteran Reintegration Program.
    Senator Voinovich. What is that called, again?
    Mr. Ciccolella. The Homeless Veteran Reintegration Program.
    Senator Voinovich. The one before that.
    Mr. Ciccolella. The REALifelines program. It is a program 
we started about 2 years ago out at Walter Reed. We have 
stationed veteran employment representatives at Walter Reed and 
Bethesda, Madigan, Brooke Army Hospital, Balboa, and now we are 
putting them into the medical holding companies, so that as 
these folks come back and they are seriously wounded, while 
they are waiting for discharge or their evaluation boards, we 
can get them interested in employment, especially if they are 
going to leave the service.
    We have a network of veteran employment representatives 
around the country. Many of those veteran employment 
representatives are members of the DAV, the American Legion, 
and the VFW. So that is a network that we can actually refer 
those individuals to get jobs. So far we have put a little 
fewer than 100 of the most seriously wounded--I am talking 
multiple amputees, even brain-injured service members--and 
their spouses into employment.
    So the veterans' service organizations are instrumental, in 
that effort, and they are very instrumental in the compliance 
area. They are very interested in veterans' preference. I think 
their view of veterans' preference is that it is not broad 
enough. So we have a regular dialogue with them about that.
    An area that is just as important for me is the USERRA 
area, the Uniformed Services Employment and Reemployment Rights 
Act, because as you know we have had half a million Guard and 
Reservists in particular being mobilized. A lot of those are 
young people, and they come back, and some are not employed. 
But if they are employed, they get their jobs back when they 
come back.
    The veterans' service organizations also can be very 
helpful in terms of when and if an individual comes back and 
they have issues or problems. If they know about what the 
reemployment regs are, they can connect that veteran to us, and 
it is very helpful.
    Senator Voinovich. First of all, I want to say that this 
REALifeline is wonderful. I don't get out there often enough. I 
get out there maybe once a month to Walter Reed. I go down and 
meet men and women recovering there. They have that fantastic 
rehab center. It is amazing what they are doing.
    But you meet them and they say, ``I wanted to have a career 
in military service. I'm not going to be able to have one.'' 
And the first thing in their mind is, ``I need a job.'' They 
have to know that there is somebody out there that cares about 
them. I think that the stress level is reduced substantially if 
they can talk to somebody and they know somebody is going to 
look out for them because they appreciate what they have done 
for our country.
    Mr. Ciccolella. Sometimes we can not get them employed 
right away, but it is very important that we are there for 
them. One of the things they may need is funding. So we may be 
able to help their spouse get employed until they are ready to 
get employed. So it is a good program.
    Senator Voinovich. The other thing is the National Guard 
people that are coming back and the Reservists. Are they 
familiar with their rights? Are you hearing any complaints such 
as, ``I'm getting hassled about my job.'' Would that be brought 
to their Adjutant General or do they bring that to you?
    Mr. Ciccolella. Yes. They can certainly take it to the 
unit--the National Guard has a good structure for receiving 
those complaints. If it is going to require an investigation, 
it comes to us. The Defense Department has a national committee 
of volunteers around the country. In Ohio, you have General 
Hartley up there, who really has a very good program for this. 
You have about 6,000 National Guard who are deployed from Ohio 
at any given time.
    Senator Voinovich. The point is, that if I come back and I 
am having a hard time with my employer, most of the time that 
is going to be handled on the State level and it won't usually 
get kicked up to you?
    Mr. Ciccolella. No, actually, not so. We have a network of 
Federal staff in every one of the States. We make sure that 
prior to mobilization, all National Guard and Reserve are 
briefed on their employment and reemployment rights. When they 
return, during the demobilization process, we also provide them 
at least a one-hour presentation on what their employment and 
reemployment rights are and how to find assistance. If they 
need assistance, then either us or the ESGR people will open a 
case on them. ESGR does informal case work. We do formal 
Federal investigations.
    You asked about what the trends are. Before September 11, 
we were doing 900 investigations every year. During the Gulf 
War, the first Gulf War, we were doing 2,500 for those 2 years, 
1991 and 1992. After September 11 we had a very significant 
mobilization. And so about April 2003, when the first of the 
Guard started coming back, we found that the investigation 
numbers went up. They went up to almost 1,500 cases a year in 
2004. And then in 2005 they went down to about 1,250.
    During the first Gulf War we had one complaint and one 
investigation for every 54 returning Guardsmen and Reservists. 
Now, I am not talking about the guys who do their weekend 
drills. I am talking about the people who are actually 
deployed. Now we are at 1 in 81, so we are doing better. We put 
new rules out about USERRA that are extremely good and easy to 
understand. We have got a tremendous outreach effort to the 
employer community and the service members.
    Senator Voinovich. When they get called up, do they get a 
letter that they give their employer that explains what they 
are doing and what their rights are?
    Mr. Ciccolella. The law, the way that works is that an 
individual who is called up, is supposed to provide advance 
notice to the employer. Most of the time that is possible. 
There are a few cases where it is not possible, and if that is 
the case, then the employer can get whatever proof he or she 
needs from the military, a set of orders or whatever.
    But the point is, if the individual is called up and 
mobilized, there is no penalty to that individual. So it 
doesn't require a letter. We encourage the advance notice 
unless the individual can not do that, and DOD does the same 
thing.
    Senator Voinovich. It is helpful for reservists and 
employers to have a call up letter. Everyone is better able to 
understand what is happening.
    Mr. McVay, what about you? On a scale of 1 to 10, how would 
the veterans organizations rate you?
    Mr. McVay. Let me make sure you understand. Our position in 
the process has always, historically, been at the back end, so 
we have little if any relationship with veterans' service 
organizations, because when we got the cases, it was time to 
either prosecute or not prosecute. It was with the individual.
    However, since the demonstration project we have been given 
in essence half, or the odd-numbered social security numbers of 
USERRA cases, we have, if you will, contacted some of these 
organizations, let them know that we are out there, that we are 
now in the game and that we are interested. If they want to, 
they can come directly to us. This is something that we have 
actually discussed with Mr. Ciccolella. They know what we are 
doing, and hopefully we are building relationships as we go. 
That has been the first effort ever for OSC in that regard.
    I will also say that every time somebody has gone through 
those mobilizations as an enlisted man, you do get the letter. 
You get it from your division. And if you are paying attention 
when you get demobilized, if you are not sleeping, you get an 
education on what your rights are, too.
    And so they do get education when they get back. They are 
told what their rights are. The military does a very good of 
making sure of that because they are an advocate for these 
people. The First Sergeant of each company, I assure you, looks 
at each one and says, ``You're going to a class and you're 
going to learn about your USERRA rights.''
    Senator Voinovich. Thank you.
    Mr. Blair, if I asked you what Federal facility in the 
United States is not doing the job they are supposed to be 
doing, could you answer the question?
    Mr. Blair. With regard to?
    Senator Voinovich. There are so many Federal facilities--we 
have DFAS in Cleveland, we have DFAS in Columbus, we have a 
tremendous number of employees down at Wright-Patterson. Are 
you able to communicate to the Department of Defense the record 
of some of these various facilities if they do not honor 
veterans' preference? In other words, you get statistics 
specific enough so that you can tell if somewhere around the 
country isn't adhering to the law.
    Mr. Blair. We can focus in on it if we hear a number or a 
series of complaints. As I was telling Senator Akaka earlier, 
we do about between 120 and 130 Delegated Examining Unit (DEU) 
audits of various agencies and departments, of offices that do 
the hiring. We look at things such as returned certificates to 
see if veterans have topped the certificate, to see if there is 
a pattern emerging, or to see if they have cancelled vacancy 
announcements.
    Those are what set off our alarm bells and cause us to say, 
``Are you doing the right job? Are you applying veterans' 
preference as appropriate?'' In the past there have been some 
cases where we have had to go and say, ``Look, we have some 
serious problems here,'' or we are finding some egregious 
violations, and we have had to lift the Delegated Examining 
Unit authority, which basically means they have to go through 
others to hire until you remedy their situation.
    Senator Voinovich. What you are saying is, that you could 
tell me, if I asked you, how the DFAS operation is doing in 
Columbus?
    Mr. Blair. If we had done a DEU review for that operation, 
which I would have to go back and check.
    Senator Voinovich. What you are telling me, and I would 
like to have it on paper, is if a location has a pattern of 
violations, that the penalty is to pull out the hiring 
authority? So they loose the control of hiring and firing 
personnel?
    Mr. Blair. That is one of the penalties. We can order some 
corrective action to be taken, and if we find that there was a 
violation, OPM would refer it to the Office of Special Counsel 
to prosecute.
    Senator Voinovich. We should be, in fact we are, looking at 
the agencies and how many do performance evaluations on senior 
executives. We are moving towards pay-for-performance. But, I 
just wonder, is one of the things that they are taking into 
consideration, when a manager is being evaluated, is whether or 
not they are complying with veterans' preference?
    Mr. Blair. I have to go back and see if it is that specific 
or if it is more generic, but I would be happy to provide that 
for the record.
    Senator Voinovich. I would like to find that out, because 
one of the best ways that you can get people to do what they 
are supposed to do is include it in their performance 
evaluation. That is what I did when I was governor and I was 
mayor. If managers are being judged on that, then they will 
start paying more attention to it. But if they don't think it 
is a high priority, and it is just something that is nice to 
do, then I don't think you get the kind of response that you 
should.
    I will say this, and I would be interested to hear what the 
veterans' organizations have to say. The numbers that you have 
given me are very impressive. I would be interested to know, 
what were the numbers before? You've been there now, Dan, 
almost 4 years? What was the record under the previous 
administration?
    Mr. Blair. I think that it has been relatively steady at 
about 25 percent of the work force. If you remember, we 
downsized during the 1990s. So, the total number of veterans in 
the work force, since most of them were World War II VETS or 
Korea-era veterans, went down. But the representation in the 
work force has stayed relatively steady.
    Last year we did see a blip upward. I think you are going 
to continue to start seeing higher representation of full-time 
hires. We are seeing that a third of the new hires are 
veterans. So, I think you are going to start seeing those 
numbers increase again as veterans return from the Middle East.
    That is on the good side. The flip side is that just 
because you have increasing numbers does not mean that the 
violations do not exist. We are going to keep the heat up at 
OPM on agencies to make sure that they are following the letter 
of the law as intended by Congress.
    Senator Voinovich. As you know, we have probably done more 
to change Title 5 of the Civil Service Act since 1978, a lot of 
changes. I have been very much involved in that, along with 
Senator Akaka. All through this process we have been concerned 
that we maintain the merit system, including veterans' 
preference.
    The Federal Government has an Outstanding Scholar Program. 
We have given more of the agencies the opportunity to go to 
college campuses and identify individuals that are really 
outstanding and hire them on the spot because we don't want to 
lose them to the private sector. We have a real crisis today in 
the Federal Government. We have an unbelievable number of 
employees who could retire. We are trying, as Senator Akaka 
likes to say, to be the employer of choice.
    But, we have the Outstanding Scholar Program, and the 
purpose of it was to increase representation of African 
Americans and Hispanics in non-clerical entry level GS-5 and 
GS-7 positions. Through the program, agencies can 
noncompetitively appoint college graduates to an entry-level 
Federal job if they receive a grade point average of 3.5 or 
higher from accredited schools.
    However, some suggest that this Outstanding Scholar Program 
is being misapplied. Would you please share with the 
Subcommittee what steps are being taken to ensure that Federal 
agencies correctly apply veterans' preferences to all hiring 
decisions for competitive and exempted service positions?
    Mr. Blair. It is a kind of affirmative action, trying to 
have a well-balanced work force and at the same time make sure 
that we maintain our veterans' preference. Specifically, just a 
couple of points I want to make because this is a product of 
litigation right now before the Merit System Protection Board.
    Outstanding Scholars is a product of a consent decree that 
was entered into in 1980, in an effort to remedy under-
representation. At OPM we said to agencies that you can use 
this Outstanding Scholars appointment authority as a supplement 
to your regular hiring. So, if your regular hiring does not 
work right, then you can go out and use an Outstanding Scholar.
    We have never intended agencies to use it as a subterfuge 
or to supplant veterans' preference. Veterans' preference and 
Outstanding Scholar have been able to coexisted.
    Senator Voinovich. What you are saying is that this program 
came about because of a court decision mandating a prospective 
remedy for past discrimination. Is that correct?
    Mr. Blair. This is an old thing. This has been going on for 
about 25 years, the Outstanding Scholars appointment authority.
    Senator Voinovich. And today you are trying to make sure 
that it doesn't interfere with the application of veterans' 
preference?
    Mr. Blair. We want to make sure that it doesn't supplant 
veterans preference or be used as a subterfuge to it. There is 
a court case going on right now before the Merit System 
Protection Board, in which MSPB made some rulings. I just want 
to limit my comments on this point, given the litigation that 
is going on. But the points I did want to make were that, they 
have coexisted within this universe for the last 25 years. 
There is tension between the two. However, we think that there 
is room for both.
    Senator Voinovich. I can understand that, because I had a 
similar situation in Cleveland, Ohio, with the police and fire 
departments, the Vanguard case.
    Mr. Blair. The other thing we were pointing this out with 
Senator Akaka, he had asked earlier how many Outstanding 
Scholar appointments were made. For 2004, we made about 1,000 
government-wide Outstanding Scholar appointments. During that 
same time, we hired over 43,000 veterans. So for every 
Outstanding Scholars appointment, there were 43 veterans hired 
under different authorities.
    What that is intended to show, is the context in which we 
should consider these two programs.
    Senator Voinovich. Well, as I have stated to you before, 
these reforms that we have made are very significant, and they 
have caused some anxiety. As you know, some of the unions have 
even taken us to court.
    But, we will be going through this whole period, and I 
would hope that a year from now or 2 years from now through 
oversight, we will have testimony to the effect that the new 
personnel system have not interfered with veterans' preference, 
and that we have the same kind of report for categorical 
hiring, that veterans are doing better under the categorical 
hiring than they did under the old system.
    Senator Akaka, I had about 16 minutes, you had about 15. Do 
you have any more questions? I don't know when the next vote 
is, but I would like to hear our second panel of witnesses.
    Thanks very much for your appearance here today. I 
appreciate it.
    Our second panel is Richard Weidman. Mr. Weidman is 
speaking on behalf of the Vietnam Veterans of America. Joseph 
Sharpe is here on behalf of the American Legion, and Brian 
Lawrence is here for the Disabled American Veterans.
    I would like to thank all of you for being here today. You 
had the benefit of hearing the testimony from folks of the 
other agencies, so as we begin the question and answer period, 
if you have any comments about some of the things that they 
have said, we welcome that.
    Mr. Weidman, we are going to start with you.

    TESTIMONY OF RICHARD WEIDMAN,\1\ DIRECTOR OF GOVERNMENT 
             RELATIONS, VIETNAM VETERANS OF AMERICA

    Mr. Weidman. Thank you very much, Mr. Chairman, and thank 
you Senator Akaka, for holding this oversight hearing as a 
comprehensive review of the Veterans' Employment Opportunities 
Act passed by Congress and enacted in 1998. We were grateful 
back then for the bipartisan effort of Senator Hagel, Senator 
Specter, Senator Cleland, and others to get that landmark 
legislation through, to try to put some reality back into 
veterans' preference.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Weidman appears in the Appendix 
on page 60.
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    Subsequent to the Civil Service Reform Act of 1978, 
veterans organizations won the battle to keep veterans' 
preference on the books, which was a heck of a battle here in 
Congress.
    Senator Voinovich. When was that?
    Mr. Weidman. In 1978, under President Carter. But that's 
when we started to lose the ball game, when the corporate 
culture started to grow up, which is the HR sections of each of 
the Federal departments and agencies. There was also 
discrimination allegations that led to the court order that 
created the Outstanding Scholar Program referred to before.
    There was a perception at that time that veterans' 
preference was primarily a white male benefit, when in fact it 
is a veterans' benefit. Veterans look like America. We are 
every race, we are every creed, we are every national origin, 
we are both genders, increasingly so, including in combat 
theaters of operation.
    And, therefore, to think that there is a dichotomy between 
affirmative action and veterans' preference is simply a false 
dichotomy altogether, sir. You can accomplish both goals, both 
afford the individual earned right of veterans' preference and 
meet every single affirmative action goal that an agency might 
have.
    I would challenge my good friend, Dan Blair, to name me one 
Outstanding Scholar who is veterans' preference eligible, 
because I certainly have never heard of them. Customarily, it 
has been abused to circumvent veterans' preference in the last 
25 years, unfortunately so because these should not be things 
that are equivocal, whatsoever.
    Our problem with the way in which it is and is not 
happening at this point is, the accountability for actions does 
not seem to be there for Federal managers who violate 
individual veterans' preference, and there is not 
accountability for agencies that consistently, such as the 
Forest Service and Fish and Wildlife, appear to have a terrible 
record when it comes to hiring veterans and disabled veterans.
    We also worked very hard, and with the assistance of your 
colleagues in this body, we are grateful that we were able to 
hold off designer RIFs. But now there is a new wrinkle that is 
known as the involuntary repositioning rules that will 
accomplish the same thing by, as an example, taking someone who 
has family ties for four generations in the State of Idaho and 
repositioning them in the State of Mississippi, knowing that 
they will not take that transfer in order to keep that job, but 
rather it was a run-off drill so that person would quit. Or 
taking someone from Hawaii and repositioning them in Montana, 
when there are strong family ties, that they know they will not 
leave the State of Hawaii.
    We have great concerns as well----
    Senator Voinovich. Are you basically saying, if I 
understand this, that through repositioning an employee, who is 
a veteran, they can be forced out of his or her job by moving 
him or her someplace else, knowing that they will quit their 
job?
    Mr. Weidman. Well, yes. Essentially, it is a run-off drill 
about people they don't care about. It is not so much anti-
veteran, as the favorites of the agencies are herded into one 
area, into essentially a no-fire zone, which is exactly what 
used to happen under designer RIFs, those they want to keep, 
and those who they don't care one way or the other about are 
put into a free-fire zone.
    Senator Voinovich. But wouldn't that apply to anybody that 
they are not really happy with?
    Mr. Weidman. That is correct.
    Senator Voinovich. So, in other words, what you are saying 
is in the process of doing that, with positions they would like 
to eliminate, veterans are included?
    Mr. Weidman. The veterans are part of the pool, but in many 
cases, it is a service-connected disabled veteran. They have to 
keep those people first if they go to a formal RIF. Then the 
service-connected disabled veteran would probably stay, the 
same thing with your veterans.
    Senator Voinovich. So if there is a formal RIF, you still 
have veterans' preference applies?
    Mr. Weidman. That is correct, sir.
    Senator Voinovich. In using repositioning, it does not 
apply?
    Mr. Weidman. That is correct, sir. There is no waiting 
whatsoever.
    There had been previous talk on making agencies accountable 
and I was smiling at that. It was right dead on point, Mr. 
Chairman, about why isn't there a computer program to be able 
to monitor what is going on in each agency at each locality 
around the country? Everything is already computed. It is just 
a matter of setting up the system to monitor, to hold agencies 
accountable, and we would encourage the Subcommittee to mandate 
OPM to do just that. The audits are too much hit-and-miss, and 
therefore what is indicative of that is, unfortunately OPM can 
not tell you the results of a single one of those audits 
because they make so little impact, unless they dig down and go 
back and dig it out.
    In terms of need of legislation to go further at this time, 
to build off of the base of the Veterans' Employment 
Opportunities Act, we would ask that you consider, sir, the 
elimination of the word ``knowingly'' from the statute 
altogether, and to clarify the lines of authority between OSC, 
the Office of Personnel Management, OPM, and the Veterans' 
Employment and Training Service.
    There is great confusion on that, even amongst the three of 
them, as to who is responsible for what. When we approach them 
with an individual case, that is clearly an egregious violation 
of veterans' preference, Labor says it is OPM's job, OPM says 
it is Labor's job.
    The reporting, for a true picture about what is going on, 
the 2004 report to which Mr. Blair alluded, while this report 
was being prepared, we pointed out that they were listing all 
veterans and not veterans' preference eligibles, and they still 
didn't make a distinction in the final report. The gentleman 
who was in charge of it was on detail from another office, 
which highlights a significant weakness of that. Historically, 
unfortunately, that is what OPM has always done, because there 
are more veterans than there are veterans' preference eligibles 
in the population, and it is very specifically awarded to 
wartime veterans only.
    Senator Voinovich. Mr. Weidman, can you wrap up? I have 
given you a little extra time.
    Mr. Weidman. Should I stop?
    Senator Voinovich. If you could wrap it up, yes.
    Mr. Weidman. So we need reporting and data by grade, by 
age, per agency, because those are the key things to get a 
picture of what is happening, and whether or not the younger 
veterans, who have extraordinary unemployment at the moment of 
60 percent or greater, in fact are being picked up and will be 
able to move up within the Federal agencies in the future.
    There are a number of other things that we would have to 
say about that that have to do with making veterans' preference 
apply to all pay grades and wage grades in the future, and 
every agency being put under measurable performance outcomes 
for applying the law.
    Thank you very much, Mr. Chairman, for holding the hearing 
and for allowing us to present our views here today.
    Senator Voinovich. Thank you. Mr. Sharpe.

    TESTIMONY OF JOSEPH C. SHARPE, JR.,\1\ DEPUTY DIRECTOR, 
       NATIONAL ECONOMIC COMMISSION, THE AMERICAN LEGION

    Mr. Sharpe. Mr. Chairman and Members of the Subcommittee, 
the American Legion appreciates this opportunity to share its 
views on veterans' preference in the Federal Government.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Sharpe appears in the Appendix on 
page 71.
---------------------------------------------------------------------------
    Congress enacted the Veterans' Preference Act of 1944 to 
address the readjustment needs of the men and women who served 
their country during the time of war.
    The law was designed to assist veterans in regaining the 
lost ground suffered in their civilian careers as a result of 
military service.
    When the American Legion was founded in 1919, one of the 
first mandates was to convert the existing patchwork of 
veterans' preference laws, administrative rules, and executive 
orders into one national policy that would be protected by law. 
That goal was realized 25 years later when President Roosevelt 
signed the Veterans' Preference Act of 1944 into law.
    With the closing of World War II, the Federal Government 
enthusiastically complied with the provisions of the new 
veterans' preference law. Unfortunately, as time passed and the 
memory of war faded, so did America's concern for fulfilling 
its obligations to its citizen-soldiers. Today, provisions of 
the original legislation and its amendments as codified in 
Title 5, United States Code--USC--seem almost nonexistent to 
many veterans across the country.
    The American Legion believes there are several reasons for 
this. A large number of Federal managers do not understand, or 
agree, with the reasoning for granting veterans' preference to 
those who fought to keep this country free, nor do they 
understand or care how this process works.
    Veterans' preference laws are intended to give veterans an 
advantage over other applicants for Federal positions and 
during a reduction in force, RIF. Veterans are disadvantaged 
while serving their country. For many years, veterans' 
preference laws successfully provided significant advantages, 
as intended. However, over many years, agencies have gradually 
gained access to appointment methods that do not require 
providing preference. Other weaknesses in the current system 
relate to enforcement of veterans' preferences, accountability 
and disciplinary action for veterans' preference violations, 
and the limited appeal rights for violations of veterans' 
preference.
    The American Legion would like to reiterate how important 
veterans' preference in Federal hiring is to returning service 
members and veterans. It is equally important that OPM maintain 
enforcement power over Federal agencies.
    In a time of rapid change, and with the pending departure 
of 400,000 service members within the next 2 years, the 
American Legion believes that the current structure within OPM, 
which is designed to monitor, inform, promote, and enforce 
veterans' preference laws, is clearly inadequate. The American 
Legion recommends that Congress provide additional funding for 
an Office of Veterans' Affairs within OPM, so that it is 
adequately staffed and funded. Such an office would better 
exercise OPM's mandate to protect veterans' preference.
    Mr. Chairman, a grateful Nation created the concept of 
veterans' preference for those citizens who served this country 
in our Armed Forces. Due to the current war on terror, 
thousands of service members of the Reserve component, who make 
up 40 percent of the current fighting force in Iraq and 
Afghanistan, will now qualify for veterans' preference due to 
their extraordinary contribution to the freedoms we all enjoy 
as Americans. The American Legion urges the Subcommittee to 
send a strong message to Congress to do more to preserve and 
protect veterans' preference.
    Mr. Chairman, this concludes my statement.
    Senator Voinovich. Thank you. Mr. Lawrence.

     TESTIMONY OF BRIAN E. LAWRENCE,\1\ ASSISTANT NATIONAL 
        LEGISLATIVE DIRECTOR, DISABLED AMERICAN VETERANS

    Mr. Lawrence. Thank you, Chairman Voinovich. Good 
afternoon, Senator Akaka. On behalf of the 1.3 million members 
of the Disabled American Veterans, thank you for the 
opportunity to present our views on the state of veterans' 
preference in Federal employment.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Lawrence appears in the Appendix 
on page 78.
---------------------------------------------------------------------------
    Our country has recognized that members of the Armed Forces 
deserve special consideration regarding appointments to Federal 
positions since the Revolutionary War. Along with rewarding 
benefits for their patriotic duties and sacrifices, our 
government realized the value in harnessing veterans' inherent 
leadership qualities and skills, which are essential to any 
successful business or government agency.
    Despite statutory requirements providing Federal employment 
preferences, we occasionally receive complaints from disabled 
veterans who believe their preference rights were ignored or 
intentionally circumvented by the agencies, to which they had 
applied. Most often such complaints are in reference to the 
Outstanding Scholar Program. Many Federal agencies use the OSP 
to hire new employees that have maintained college grade point 
averages of 3.5 or higher. The program should never take 
priority over veterans' preference.
    Senator Voinovich. Excuse me just a minute. We have heard 
this now, and what I would like to know from you, whether this 
is anecdotal or can you show us specific cases where this has 
occurred? That is very important to us. In other words, so 
often witnesses come here and say this is that. But for us to 
really investigate, I need some examples.
    Mr. Lawrence. It is anecdotal, largely, but there has been 
a lot of it. So many instances of it that we have had 
resolutions actually introduced to ban the Outstanding Scholar 
Program. There wasn't a resolution that was adopted by our 
membership included with our legislative agenda, but it has 
risen to that level.
    Again, we feel that the Outstanding Scholar Program should 
never trump veterans' preference. It lacks the statutory 
preference. And, additionally, I don't think maintaining a 3.5 
grade point average indicates that somebody would be a better 
worker than somebody that served their country in the military.
    In my testimony I refer to the Merit System Protection 
Board, the MSPB case. We were disheartened that OPM asked for a 
reconsideration of that case, and we feel that it sends the 
wrong message to the men and women serving in the military.
    The Outstanding Scholar Program is probably the foremost 
example of ways that veterans' preference has been voided. But 
again, I am going largely by anecdotal information here. I 
don't have a specific case to mention to you right away.
    We appreciate the Subcommittee's interest on these issues, 
and we will do whatever we can to help enforce veterans' 
preference and see that there is a better upholding in the 
future. That will conclude my statement.
    Senator Voinovich. Thanks very much.
    Would you all agree that Federal managers do not understand 
veterans' preference, and why we have it?
    Mr. Weidman. No. Many managers do, and God bless them. The 
problem is that there is no repercussions for those who either 
do not, or those who understand the purposes, but disagree with 
the purposes and do not act accordingly with the law.
    Senator Voinovich. Do you know whether or not OPM, in terms 
of orientation for managers, gives them information through 
their chief human capital officers or human resource people? 
Has there been a training program so they understand why we 
have veterans' preference?
    Mr. Weidman. I think most of their training program focused 
on that, but it is not a competency based program, number one. 
And, number two, at the Department of Labor, some of their 
staff--most of their staff I guess has been trained now. But, 
none of them have taken any competency based tests about how to 
investigate a complaint as to whether someone has a veterans' 
preference right, if there is a legitimate case in an agency, 
and where there have been repeated complaints from the same 
locality, the same agency, whether or not there is pattern and 
practice happening at that locality. That means that it is the 
given norm there and needs to have significant action.
    Senator Voinovich. So you would like to see a follow-up on 
this--that gets back to the statistical analysis that I talked 
about--so that there would be some coordination between the 
Department of Labor and OPM? Maybe Senator Akaka and I can ask 
for a report every 6 months or a year that basically talks 
about how people are performing?
    Mr. Weidman. We are sensitive to the lack of performance, 
and we are sensitive to the fact that we are all, to some 
degree, flying blind. It is not an affirmative action program. 
So the question is, how do you pinpoint the specific cases? 
Now, we do get individual complaints, and quite often get a 
real run-around, and I can show you some war stories.
    Senator Voinovich. I can tell you this. Talking to some 
managers that I talk to, they will say to you, ``Veterans' 
preference doesn't make any sense. It's not the best way to 
manage.'' So there has got to be some education that this is a 
policy Congress has decided to do.
    I think you heard my comments to Mr. Blair, that as we, the 
government, moves into strong employee performance evaluations, 
we should include understanding of veterans' preferences, along 
with other things they should be measured on.
    Mr. Weidman. If I may just say, one thing I would like to 
do publicly is commend Secretary Nicholson. In this coming 
year, for the first time ever it is a specific, stated goal of 
the Veterans' Administration to hire more veterans, overcoming, 
I might add, the objections of Office of Management and Budget 
of those being included. Office of Management and Budget has 
less than 10 veterans working for it, in the entire agency, and 
no disabled veterans, so that is where their mind set is at. 
They are already putting it into managers' job descriptions 
because Secretary Nicholson is serious about it.
    It takes that kind of commitment from the top of each 
agency, doing what it is supposed to do. But there is no 
centralized reporting mechanism on things like the disabled 
veterans and affirmative action program. They state what the 
goals are, but nobody comes back and says, ``What did you do?''
    Senator Voinovich. You would support Senator Akaka and I in 
requesting OPM Director Linda Springer to provide the good 
examples, role models, among agnecies?
    Mr. Weidman. I would say that, yes, sir.
    Senator Voinovich. Mr. Sharpe.
    Mr. Sharpe. You mentioned earlier about the Outstanding 
Scholar Program, if we had any evidence. We are currently 
involved in a case now, and one of our assistant directors, 
Juan Latta, has brought some hard copies of it, of our 
involvement, so we can give that to you after this session.
    Senator Voinovich. We would like to have it. If I ask the 
NAACP or the Urban League, or other national organizations that 
represent minorites, what do you think would they say about it?
    Mr. Sharpe. I have spent 22 years in the military, and I 
recently returned from Iraq, so I am still in that military 
mind-set, so I have no idea what the NAACP or any other group 
would say.
    Senator Voinovich. This consent decree is prospective 
relief for past discrimination. The courts decided that there 
was discrimination in the Federal Government. You feel the 
program is being abused. I would be interested in knowing what 
other organizations think.
    Mr. Sharpe. My unit is on its way back to Iraq, and so as 
far as I am concerned, I am against the Outstanding Scholar 
Program. I don't care who it is for. But I really thing 
veterans deserve that.
    Twenty percent of the Army is made up of African Americans, 
and that is where my loyalty goes. I consider myself an Army 
Sergeant, and I am still that. And I feel that this goes 
against the grain of veterans' preference.
    I have seen too much, and I believe that when these 
veterans come back--I have too many people in my unit that are 
currently unemployed. I have people that are homeless. I know 
too many military folks that are trying to get into the Federal 
Government. I have met people in Walter Reed, severely injured, 
and they are upset because they have to wait a year to try and 
get their applications through to the Federal Government.
    Senator Voinovich. So do you have concerns with the 
REALifeline program?
    Mr. Sharpe. I think it is an excellent program.
    Senator Voinovich. But you don't think it is doing enough?
    Mr. Sharpe. The problem is that there seems to be a funding 
issue with everything. There is a funding issue with OPM. We 
feel that there ought to be an Office of Veterans' Affairs. 
There is one full-time person. I can not see how one full-time 
person can monitor veterans' preference in all the agencies, 
even though OPM has made a great effort in trying to do 
outreach. The same thing with the Department of Labor. I think 
that they are understaffed. The Amerian Legion and other 
organizations have been fighting for years for more funding.
    I think with more funding, and a greater willingness, on 
certain individuals in the government, to ensure that veterans 
are ensured of their rights, I think we can solve the problem. 
But, I think they are doing a good job with what they have.
    Senator Voinovich. I am over my time, Senator Akaka.
    Senator Akaka. Thank you, Mr. Chairman.
    This is a question to all of you. I asked this question of 
Mr. Blair earlier about three reoccurring issues at OPM's 
quarterly meetings.
    I know there are many issues, but what are three 
reoccurring issues that you have at these meetings, and how 
would you rate OPM's responsiveness to your concerns? Mr. 
Weidman.
    Mr. Weidman. One issue that occurs almost every meeting, is 
the lack of measured performance outcomes. Most of us in 
veterans' service organizations feel strongly that, if you have 
these glowing generalities, how do you know if you are making 
any progress towards it? That is number one.
    Mr. Blair has challenged us to come back exactly with what 
you asked, Mr. Chairman, and that is with specific cases. We 
are trying to do that through surveys of our own membership, to 
the point where, this past month, I ran an ad in the Federal 
Times, Army Times, Navy Times, Air Force Times, and Marine 
Times, with a special e-mail address, vetpref@vva.org. We are 
going to continue to do that, but, in the meantime, each agency 
has to come from the other end.
    Their 1984 report makes certain recommendations. To our 
knowledge, there has been no look-back to see whether any of 
these has been implemented. And, second, none of them were 
quantitative in any manner, shape, or form. And there is no 
redress mechanism in the form of an 800 number or a specific e-
mail address that somebody can send an e-mail to and say, 
``This is my case,'' and leap over the agency at hand or 
whatever the problem may be at the local level to seek redress.
    So it is a question of measurable performance outcomes, 
lack of redress, and the last, but by no means least, is 
concern in regard to trying to get a grip on the specific 
scenarios with the new categorical rankings. They have brought 
in, to their credit, George Nesterchuck, who is somebody who 
worked for Congressman John Mica when we fashioned the 
veterans' peference--actually it was first fashioned in 1995 
and finally enacted in the 106th Congress. Mr. Nesterchuck is 
somebody who we value, and he is working at OPM now, trying to 
make sure that there is veterans' preference in the new DOD 
system.
    Senator Akaka. Mr. Sharpe.
    Mr. Sharpe. For the American Legion, we are very concerned 
again with accountability: OPM's ability to oversee and 
enforce. We are concerned, with their staffing levels, if they 
are able to conduct what they need to do. We feel that they 
have made an effort, a huge effort, under Kay Coles James and 
the current administrator, to do what they could, but we just 
feel that this is not enough. They really don't have the 
funding, the personnel, or the statutes in place to allow them 
to be more effective. I think they are doing the best they can, 
with what they have, but I don't think they have enough to work 
with. And neither does the Department of Labor.
    Senator Akaka. Yes, and in your testimony you did use the 
word ``inadequate,'' and you are saying it again. Mr. Lawrence.
    Mr. Lawrence. I don't think I can add anything to what my 
colleagues have said on that issue, so rather than reiterate, I 
will just defer to what they have said.
    Senator Akaka. Let me ask the three of you again another 
question. You heard Director Blair's response to Senator 
Voinovich's question about the impact of category ratings on 
veterans' preference. In your view, what has been the impact of 
this personnel flexibility on veterans' preference? Mr. 
Weidman.
    Mr. Weidman. It is unclear. The jury is very much still out 
on it. In terms of the initial switchover, if we were asked, 
the veterans' service organizations, ``Why are you so paranoid 
about that?'' we would have replied, ``If we couldn't trust you 
with the rule of one in three, why in the world would we trust 
you with the rule of one in three hundred?''
    And, until they put into place the performance measures and 
ways of monitoring station-by-station to pick up patterns and 
practice, to go in and discover where there appears to be 
statistical anomalies, then to go in and see if rights of 
individual veterans' preference eligibles are being violated, 
until they put that in place, we remain even more skeptical 
about the categorical rankings.
    Senator Akaka. Mr. Sharpe.
    Mr. Sharpe. From our viewpoint, the jury, again, is still 
out. But we are not sure OPM has enough to be able to 
adequately tell us if preference is being violated or not, or 
if this is a better system or not. I just think certain things 
are not in place to be able to definitely let us know how the 
Federal agencies are carrying out their mandates.
    Senator Akaka. Mr. Lawrence.
    Mr. Lawrence. The DAV hasn't had a specific position on 
that issue, so I don't have any comments in that regard.
    Senator Akaka. Mr. Chairman, my time has expired, but if I 
can ask one more question----
    Senator Voinovich. I have a suggestion. I have a commitment 
at 4:30, and what I would like to do is continue the hearing 
and then you can adjourn it. Is that all right?
    Senator Akaka. I will submit questions for the record, so 
you may adjourn the hearing.
    Senator Voinovich. I want to say I appreciate your 
testimony here today. What I would like to do, with Senator 
Akaka, is to sit down and get a letter summarizing some of the 
issues that were brought here.
    One of the things that bothers me about these hearings is, 
you guys come in and testify. Then, maybe, we are going to come 
back a year from now and do the same thing. I hate to have 
hearings without a follow-up.
    So I would like to sit down with Senator Akaka. We will try 
to draft a letter, it may not include everything that you want, 
but, we would be glad to even run it past you to see what you 
think about it, and then we will have to decide whether it is 
going to be included or not included. Then we will see if we 
can get some action on some of these things, particularly with 
OPM.
    But I want you to know this, that OPM, the Department of 
Labor, and some Federal agencies do not have the budget they 
need.
    One of the things that we have to do here is to figure out 
how people can get things done with the budget they have. We 
are asking them to do jobs and we don't give them the resources 
to do the job. What I found from my experience as a mayor and a 
governor, when you say to somebody, ``I want you to do the 
job,'' and you don't give them the tools to do it, then 
basically what you are telling them is you don't think much of 
the job you are asking them to do.
    We have got to address this. Director Springer is coming in 
next week to see me, and I am going to try to ask her to 
identify areas that we are asking her to take care of and talk 
about the real resources. This Administration wants us to get 
involved in a lot of reforms that are controversial, and I am 
unsure if they have the capacity to implement further reforms 
well. If they want us to cooperate with them, then I want them 
to show me the money.
    When we consider the issues of today, and halting illegal 
immigration, including more drones, and helicopters. But at the 
same that we are talking about doing these things, never have I 
heard a Member of the Senate or Congress by the same token say, 
``And, by the way, folks, it's going to cost us X number of 
dollars.'' So the public doesn't get it.
    I learned we are spending $154 million protecting the oil 
lines in Saudi Arabia. It just drives me crazy. I call it the 
silo effect. There is a silo and there is a silo and there is a 
silo. Nobody ever looks at the big picture to see how do all 
the silos fit together.
    If we don't start looking at the big picture, we are going 
to have more trouble. We don't have the right people with the 
right knowledge and skills at the right place at the right 
time. We have underestimated how important it is to have those 
people in place. The most important resource we have in this 
government are good workers, management that pays attention to 
what they are doing, and the resources to get the job done.
    I will adjourn this hearing now, but I want you to know we 
are going to work on this. Six months from now we know it is 
not going to be one of those deals where you came in to say, 
``Well, you saw those guys, and they'll forget about it for a 
year.'' We are going to do something. OK?
    Senator Akaka. Mr. Chairman, let me just say that your 
statement was eloquent, and I can tell it comes out of your 
experiences as a mayor and governor, and knowing what happens 
in the trenches. Unless we have the personnel and an office 
that can handle veterans' preference, then veterans are left 
without recourse. Using the words of Mr. Sharpe, agencies 
efforts are inadequate.
    I know the frustration the Chairman goes through, that we 
have these hearings and there is no appropriate answer. I am so 
glad, Mr. Chairman, that you are pushing this, and I am with 
you on putting a letter together to try to get answers on this.
    Senator Voinovich. The hearing is adjourned.
    [Whereupon, at 4:35 p.m., the Subcommittee was adjourned.]





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